Aliyah for family members – immigration for non-Jewish nuclear family

Joshua Pex

Immigration to Israel for non-Jewish family members?

The Law of Return (1950) is considered one of the fundamental laws of the state of Israel as a Jewish democracy. The Law of Return establishes the legal basis to the ideological Zionist project that allows Jews and their non-Jewish family members to immigrate (make Aliyah) to Israel. In this article advocate Michael Decker, an Israeli immigration lawyer at the law office of Cohen, Decker, Pex & Brosh, will explain who is eligible to make Aliyah to Israel and receive Israeli citizenship, focusing on Aliyah for family members of Jews, Messianic Jews and members of other religions.

“Who is a Jew” according to the Law of Return

Section 1 of the Law of Return determines that every Jew shall be entitled to immigrate to Israel, and obtain immediate citizenship. Section 4(b) of the Law of Return defines a Jew as an individual who has a Jewish mother, or as a convert to Judaism, and who is not a member of another religion. In the Israeli Supreme Court ruling 265/87 Beresford v. the Israeli Interior Ministry, it was decided that Israeli law equates Messianic Jews with Christians, therefore legally considering a Messianic Jew as member of another religion, and not Jewish. Given that Jews who have converted to another religion are not entitled to immigrate to Israel, in accordance with the Jewish definition given in Section 4(b) of the Law of Return, Messianic Jews (or people suspected of being Messianic Jews) are routinely denied the right to make Aliyah. In fact, any person who is Jewish according to the orthodox Jewish religion (child of a Jewish mother) and wants to make Aliyah, but actually practices a different faith, will not be legally eligible for Aliyah.

Aliyah for family members of Jews regardless of their faith

The Law of Return states that “a family member of a Jew” can mean a child or grandchild of a Jew, or the spouse of a Jew, or the child or grandchild to a Jew. The law does not provide for the immigration of other family members, such as siblings or half siblings and grand-grandchildren.

Section 4a(a) of the Law of Return permits non-Jews to immigrate to Israel, if they are family members of Jews (as defined above), but prevents an individual who was once Jewish, but then willfully changed his or her religion from exercising the Right of Return.

Therefore, if a non-Jewish member of another religion only has a Jewish father, or Jewish grandparents, and does not have a Jewish mother, he or she, would be entitled to immigrate to Israel legally, in accordance with the Law of Return allowing Aliyah for family members. It is important to note that hundreds of thousands of people have made Aliyah to Israel as family members of Jews, despite not being considered Jewish by the law of return, but were eligible for Aliyah as a family member of a Jew.

In fact, in the Supreme Court verdict 2708/06 Steckback v. the Interior Ministry (Court ruling from the 16th of April 2008) it was clearly determined that a Messianic Jew would be entitled to immigrate to Israel, as a family member of a Jew, according to Section 4a(a) of the Law of Return, provided that he or she does not have a Jewish mother.

The same logic would seem to apply to a Messianic Jew/Christian, whose mother converted to Messianic Judaism, or Christianity, or any other religion, before the birth of the person in question. As the mother had converted before the birth of the Aliyah applicant, this individual was not born to a Jewish mother, and would therefore not be defined as a Jew, according to Section 4(b) of the Law of Return.

The Israeli authority responsible for approving or denying requests of Aliyah to Israel is the Israeli Ministry of Interior. The Jewish Agency and its subsidiary Nefesh Be’Nefesh, assist in the Aliyah process for those who apply for Aliyah outside Israel. These authorities help Jews and family members of Jews in immigrating to Israel. However, workers of these organizations are instructed to ask Aliyah applicants if they are of the Messianic Jewish faith and if so, to deny their application. In any case, regardless of whether an Aliyah applicant has a Jewish mother, or whether the Aliyah applicant is a convert to Judaism, and despite the precedent of the Steckback Case, the Interior Ministry immigration agents deny most applications submitted by Messianic Jews or Christians. If the clerks at the Interior Ministry discover that the individual in question is a Christian or a Messianic Jew, the process will be delayed indefinitely, until the applicant’s appeal is submitted and processed. It is important to note that many employees as the MoI assume that all Messianic Jews engage in missionary activity, which under certain circumstances is illegal in Israel.

A family member of a Jew who is also an active missionary may not make Aliyah

In more recent years, the State Attorney’s Office (which represents the Interior Ministry before the Supreme Court of Justice in cases regarding Aliyah and Israeli citizenship), tried to convince the Supreme Court to adopt an essential interpretation of section 4a(a) of the Law of Return. According to this broad interpretation the legal counsels of the State claimed that the objective of the Law of Return in allowing Aliyah for family members is based around the objective of allowing Jews to return to the land of their fathers, along with their family members. The ultimate goal is the hope that the family members in question shall return to the Jewish faith (This objective is demonstrated in the explanatory notes on Section 4a(a) of the Law of Return).

According to this position, which was accepted by the Supreme Court of Justice, a family member of a Jew who is intent upon actively distributing Christian literature in Israel should not be entitled to immigrate to Israel, since such activity would contradict the objective of the Law of Return (Israeli High Court of Justice ruling number 8320/10 Zev Isaacs v. the Interior Ministry).

Aliyah to Israel for the daughter of a Muslim mother

This Supreme Court ruling on the Zev Isaacs case was stretched even further, in the case of HCJ 10535/09 Jane Doe v. the Interior Ministry. In the Jane Doe Case, Supreme Justice Hanan Meltzer rejected a petition that was submitted by the Movement for Progressive Judaism in Israel. In their petition, the Movement for Progressive Judaism requested that the Supreme Court order the Interior Ministry to grant citizenship to a certain grandchild of Jewish grandparents, even though the mother of the petitioner may have converted to Islam. The conversion of the mother to Islam was due to the fact that she married a Muslim man in a Sharia court and raised her children (including the petitioner) in accordance with Muslim values, in the Arab city of Shechem (Nablus). The petitioner identifies as a Muslim (according to her own declaration on the application form which she submitted before the Interior Ministry) but she claimed that she had the right to make Aliyah as a family member of a Jew, according to section 4a(a) of the Law of Return.

The Movement for Progressive Judaism in Israel argued that the petitioner is eligible to make Aliyah in accordance with the grandchild clause of the Law of Return (section 4a(a) of the Law of Return), being both the daughter of a converted Jew and the granddaughter of a practicing Jew.

The administrative factual findings of Justice Hanan Meltzer led him to the conclusion that the mother of the petitioner did convert to Islam, and that the petitioner leads a Muslim lifestyle. Therefore, the legal conclusion of Justice Meltzer was that the petitioner is not eligible to immigrate to Israel as a non-Jewish grandchild of a Jew, in accordance with Section 4a (a) of the Law of Return.

In this significant decision made in by Justice Meltzer, the precedent set in the Zev Isaacs Case was extended, since the petitioner in the Jane Doe Case, according to the verdict itself, was not a Muslim “missionary”, but was still denied permission to make Aliyah.

Request for an additional hearing at the Supreme Court

This Supreme Court ruling would have far-reaching consequences for the right for Aliyah for family members of Jews, therefore the Movement for Progressive Judaism in Israel submitted a petition for an additional hearing with a large panel of judges. They appealed the new legal precedent which was determined in both the Isaacs Case and the Jane Doe Case, and which seemed in contradiction to the modus operandi of the State of Israel during the past decades, as it relates to its immigration policies, their interpretation, and application, of Section 4a(a) of the Law of Return.

However, on the 9th of November 2016, Justice Elyakim Rubinstein rendered his verdict in regards to the Request for an Additional Hearing. The Supreme Court ruling made clear that there are two options for denying an application for Aliyah for family members of Jews in accordance with section 4a(a) to the Law of Return. The first, is if the family member’s religious activity contradicts the objective of the Law of Return (which would be the case only if the family member is an active missionary). The second, is that if the family member is a son/daughter of a Jewish parent that changed his/her religion, and has a Jewish grandparent that did not change his/her religion, then the most recent precedent determined that this family member cannot ignore the parent that changed his/her religion, and claim Aliyah rights based on the Jewish grandparent (the logic being that if the parent is not entitled to immigrate to Israel due to a change of his/her region, than the child of the parent in question should also not be entitled to immigrate to Israel).

Aliyah for family members – legal counsel

The issue of Aliyah to Israel may be very simple for those who easily qualify for the conditions and are assisted by the Israeli state agencies. On the other hand, for those wanting to make Aliyah but who encounter resistance from the Ministry of Interior, the Aliyah process may be very complicated. Cohen, Decker, Pex, Brosh is a law firm that has a great deal of experience with various issues related to immigration to Israel, including Aliyah for family members according to the Law of return. Please contact us if you have any questions or are in need of legal assistance.